Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement.
This paper is about the right of defense of existing technology in patent infringement disputes.
1. According to the relevant provisions of the Patent Law before the amendment and the practices in practice, in patent infringement cases, one of the ways for the accused infringer to prove that his actions are not infringing is to file an application for invalidation of the patent with the Patent Reexamination Board; After the Patent Reexamination Board declares the patent right invalid, the department dealing with patent infringement disputes may determine that the actions of the accused infringer do not constitute patent infringement. This process is usually complicated and time-consuming. In order to prevent malicious use of known existing technologies to apply for patents, hinder the implementation of existing technologies, and help existing technology implementers get rid of patent infringement disputes in time, the provisions on the right of defense of existing technologies have been added in this revision of the patent law.
Second, according to the provisions of this article, in a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it is not necessary to file an application for invalidation with the Patent Reexamination Board and ask the Patent Reexamination Board to confirm whether the patent right involved is valid. Once the department dealing with patent infringement disputes determines that the technology or design implemented by the accused infringer belongs to the existing technology or design, it can directly determine that the accused infringer does not infringe. According to the definitions in Articles 22 and 23 of this Law, the term "existing technology or existing design" as mentioned in this Law refers to the technology or design known to the public at home and abroad. It should be noted that this determination of the patent infringement dispute handling department only determines whether the accused infringer's behavior infringes the patent right, not whether the patent right is valid. Denial of the effectiveness of the patent right still needs to be confirmed through the patent invalidation procedure.